Chemstar Organics (India) Pvt Ltd vs Prarthana Chemicals, Through ...
2022 Latest Caselaw 2328 Guj

     C/CA/2342/2019                                  ORDER DATED: 02/03/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 2342 of 2019
                                      In
                         F/FIRST APPEAL NO. 10034 of 2019

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             CHEMSTAR ORGANICS (INDIA) PVT LTD
                          Versus
        PRARTHANA CHEMICALS, THROUGH LEGAL HEIRS OF
        CHANDRAKANT K. DHABALE, LAXMIBEN C. DHABALE
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE for MR HIREN R SHARMA(3322) for the
Applicant(s) No. 4,5
RUSHABH H SHAH(7594) for the Applicant(s) No. 1,2,3
MR MEHUL SHAH, SENIOR ADVOCATE for MR. MAYUR V DHOTARE(7019) for the
Respondent(s) No. 1,2,3,4
MR VM DHOTRE(1089) for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                                 Date : 02/03/2022

                                 ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. Rule. Mr. Mayur Dhotre, learned advocate, waives service of notice of Rule on behalf of opponents.

2. By way of present application filed under Section 5 of the Limitation Act, the applicants - appellants, who are the original defendants, have prayed to condone the delay of 503 days caused in filing the appeal, by which, the appellants have challenged the judgment and decree dated 07.07.2017 passed by learned 14th Additional Senior Civil Judge, Vadodara in Special Summary Suit No. 136 of 2006, by which, the suit has been decreed in favour of the plaintiffs

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and the plaintiffs become entitled to recover an amount of Rs. 29,29,163.76/- (Rupees Twenty Nine Lakhs Twenty Nine Thousand One Hundred Sixty Three and Seventy Six Paisa Only).

3. In response to the notice issued by this Court, the opponents have appeared and have filed affidavit in reply opposing the application. Affidavit in rejoinder was filed by the applicants. Additional Affidavits are also filed by the respective parties.

4. Short facts arise from the record are as under:

4.1 That present opponents - original plaintiffs, have filed suit being Special Summary Suit No. 136 of 2006 in the Court of learned 14th Additional Senior Civil Judge, Vadodara under Order 37 Rule - 3 of the Civil Procedure Code to recover the aforesaid amount.

4.2 That present applicants - original defendants, have appeared through their advocate. The opponents - original plaintiffs filed summons for judgment on 14.06.2006. The applicants

- original defendants filed leave to defend application under Order 37 Rule 3(5) of the Civil Procedure Code on 19.07.02006. Learned Senior Civil Judge, by order dated 16.04.2007, granted leave to the applicants - original defendants to defend the suit on condition to deposit an amount of Rs.2,00,000/- within a period of 30 days.

4.3 Present applicants - original defendants filed an application at Exh.24 requesting the Court to stay further proceedings of the suit in view of the fact that the proceeding was filed by the applicants - original defendants under the provisions of

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Sick Industrial Company (Special Provision) Act, 1985, (herein after referred to as 'the SICA, 1985' for short) and thereafter, the suit never proceeded.

4.4 The SICA, 1985 was repealed with effect from 01.12.2016 and therefore, the suit was proceeded further. The suit was listed for hearing on 15.06.2017 and on that date, advocate for the plaintiffs remained present and affidavit in lieu of chief examination was produced at Exh. 32 before learned Civil Court. Neither the applicants - original defendants nor advocate for the applicants - original defendants remained present. The opponents - plaintiffs submitted closing pursis at Exh. 83. Thereafter, the suit was listed for hearing on 07.07.2017 for pronouncement of judgment and decree. On that day, the judgment and decree was passed, which is under challenge.

4.5 Being aggrieved and dissatisfied with the judgment and decree dated 07.07.2017 passed in Special Summary Suit No. 136 of 2006, present opponents - original plaintiffs have filed filing First Appeal No. 3697 of 2017 on the ground that no interest has been awarded by learned Civil Court while passing the judgment and decree in their favour. In the said appeal, notice came to be issued to the applicants - original defendants, which was served on 20.12.2018.

4.6 Having come to know about the decree passed against present applicants - original defendants, they appeared through their advocate and filed an application for certified copy of the documentary evidence produced by the original plaintiffs as well as judgment and decree dated 07.07.2017

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passed by learned Civil Court. On 16.02.2018, the applicants

- original defendants were informed that the record and proceedings was lying with the High Court. Thereafter, it appears from the records, which is produced with present application along with first appeal, that an application for certified copy was withdrawn by the applicants - original defendants on 14.03.2018. It is the case of the applicants - original defendants that thereafter, they have received certified copies of the judgment and decree and all the documentary evidence only on 20.03.2019 and therefore, present application along with first appeal came to be filed on 19.08.2019.

5. Mr. Shalin Mehta, learned Senior Advocate assisted by Mr. Hiren Sharma learned advocate for the applicants - original defendants, would submit that it is an undisputed fact that though the suit was filed in the year 2006, the same was not proceeded further in view of the order passed by the trial Court at Exh.24 under the application filed by the applicants

- original defendants for staying the proceedings in view of the provision of the SICA, 1985 itself since the SICA, 1985 was repealed with effect from 01.12.2016. The matter was listed for the first time on 15.06.2017. The learned Civil Court neither issued summons to the applicants - original defendants nor the advocate for the applicants - original defendants remained present. After considering the chief examination of the plaintiffs and the documentary evidence produced by the original plaintiffs, the suit has been decreed. The applicants - original defendants, having come to know about the decree only in the month of December, 2017, when

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they were served with the notice issued by the High Court in First Appeal No. 3697 of 2017, and therefore, the applicants

- original defendants filed an application for getting certified copy of the judgment and decree passed in the Special Summary Suit No. 136 of 2006 along with the documentary evidence and the same was not provided to the applicants - original defendants in view of the fact that the original record and proceedings of the above referred suit was sent to the High Court. It is true that after coming to know the fact that the record and proceeding of the above referred suit is lying with the High Court in the month of February, 2017, the applicants - original defendants, though oversight and bonafide mistake, could not file application for certified copy of the judgment and decree passed in Special Summary Suit No. 136 of 2006 along with the documentary evidence. He would further submit that several proceeding under the provisions of the SICA 1985 were going on against the applicants - original defendants, and ultimately, all the proceedings were disposed of and possession of the factory belonging to the applicants - original defendants was handed over only on 01.09.2018.

6. Mr. Mehta, learned Senior advocate, would further submit that meanwhile, opponents - original plaintiffs have filed execution proceedings, in which, summons were issued and when the applicants - original defendants came to know about the same, they requested learned Executing Court for staying proceedings, which was granted. The same was challenged by the opponents - original plaintiffs by way of filing a writ petition being Special Civil Application No. 9060

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of 2019, which came to be finally decided on 15.07.2019. He would further submit that apart from these different legal proceedings pending before the other authority, son of one of the applicants - original defendants was also hospitalized for certain days and medical treatment was going on and therefore, the applicants - original defendants could not file appeal in time. He would further submit that the applicants - original defendants have good case on merits apart from the fact that the decree has been passed in their absence and without granting any opportunity to lead the evidence. He would further submit that specific contention with regard to maintainability of the suit under Order - 37 of the CPC has been raised, which has not been dealt with by learned Civil Court. He, therefore, would submit that the application be allowed and the appeal be heard for admission on merits.

7. On the other hand, Mr. Mehul Shah, learned Senior Advocate assisted by Mr. Mayur Dhotre learned advocate for the opponents - original plaintiffs, would submit that the applicants have tried to submit that though they have applied for certified copy of the impugned order passed in summary suit before learned Civil Court in February, 2018, they have got the same only in the month of March, 2019. However, earlier application filed for obtaining the certified copy was withdrawn, the opponents - original plaintiffs collected this information under the provisions of Right to Information Act. By taking us through the communication dated 18.10.2019, which is produced along with the affidavit, he would submit that the application for certified copy was withdrawn on 14.03.2018; however, there is no material to submit that

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thereafter, certified copy of the impugned order along with the documentary evidence have been provided to the applicants - original defendants. He would further submit that it is an undisputed fact that the applicants - original defendants were aware about the decree passed against them way back in the December, 2017; however, the appeal has been filed in the month of March, 2019. He would submit that there is not sufficient cause to condone the delay and therefore, the application be dismissed.

8. We have heard learned advocates appearing for the respective parties.

9. We have called for record and proceedings of Special Summary Suit No. 136 of 2006, which is lying with First Appeal No. 3697 of 2017, which was filed at the instance of opponents - original plaintiffs.

10. We have also gone through the Rojkam prepared by learned Civil Court. As stated herein above, a conditional order was passed to defend the case; however, by submitting an application at Exh. 24, present applicants - original defendants have requested learned Civil Court to stay the proceedings of the suit in view of pendency of the proceeding under the SICA, 1985. However, we do not find any order of stay accepting the application for staying the proceedings of the suit. However, the facts that the suit remained pending for number of years and only surface of the record was that an application was filed to find the legal heirs of some of the respondents in the end of 2016. It appears from the Rojkam that the advocate for the applicants - original defendants has

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consistently remained absent and had never informed present applicants - original defendants about any application to bring the legal heirs on all occasions. It also appears from the record that from December, 2016, the matter was adjourned at the request of learned advocate for the original plaintiffs to produce amended plaint; however, the same was not produced. The matter was adjourned on 22.12.2016, 17.01.2017, 03.03.2017, 02.05.2017 and 15.06.2017. It also appears from the record that on 15.06.2017, an endorsement was made that the suit is adjourned for producing the amended plaint is struck down and date, which was mentioned as 15.07.2017, was corrected as if the suit was adjourned to 15.06.2017. On perusal of the Rojkam, it also appears that on 15.06.2017, advocate for the opponents - original plaintiffs did remain present; however, advocate for the applicants - original defendants did not remain present. The documents were exhibited and closing pursis was submitted by the original plaintiffs and accordingly, the suit was decreed on 07.07.2017. Thus, it is clear that the the suit has remained undefended at the instance of advocate for the applicants - original defendants. However, when the applicants - original defendants came to know about the judgment and decree in the month of December, 2017, an application for getting certified copy was submitted before the learned Civil Court on 11.02.2018 and the same was returned by making endorsement that the record and proceedings is lying with the High Court in the First Appeal No. 3697 of 2017 filed at the instance of present opponents - original plaintiffs. It is also true that as per the information received by the opponents - original plaintiffs under the

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Right to Information Act, the application was withdrawn in the month of March, 2018; however, it appears from the record and proceedings of First Appeal No. 3697 of 2017 that the record and proceedings was sent by the Principal District Judge, vide communication dated 16.01.2019 about forwarding the record and proceedings of the suit in question with five paper books and thereafter, the applicants received the copies in the month of March, 2019.

11. Apart from this aspect, considering certain contentions, which have been raised by the learned advocate, we are of the opinion that the application can be considered by imposing appropriate cost. Hence, present application is allowed. Delay of 503 days occurred in filing the first appeal is hereby condoned on condition that the applicants - original defendants shall pay an amount of Rs.25,000/- towards the costs to the opponents - original plaintiffs by RTGS within a period of two weeks. The opponents - original plaintiffs shall supply necessary bank account details to the applicants - original defendants.

12. Rule is made absolute to the aforesaid extent.

(A.J.DESAI, J)

(ANIRUDDHA P. MAYEE, J.) *F.S. KAZI.....